45 S.E. 657 | N.C. | 1903
DOUGLAS, J., dissenting. This case is before us again on a petition to have it reheard. The action was commenced to recover damages against the defendant for the alleged negligent killing by the defendant of the plaintiff's intestate. The evidence tended to show that a short time (304) before the passing of one of the defendant's trains, after dark, the intestate, not drunk, but under the influence of strong drink, was seen going in the direction of the railroad track, and was a short time afterwards found dead, lying by the side of the track and parallel with it and where a dirt road ran along by the side of the railroad track, but not at a crossing; that a part of the top or back of the intestate's head was knocked off, which was the only wound seen on the body; that the track was straight at the point where he was killed, for a half mile or more, and that there was no eye-witness to the death; and that the intestate had not been dragged or run over by the engine. There was evidence on the part of the defendant that there was no sign of blood on the cross-ties, and one of the plaintiff's witnesses said that on the next morning after the killing there was some blood on the cross-ties, but he could not tell whether it was between the rails or on the outside.
If it might be inferred from the evidence that the intestate was killed by the defendant's train, yet "there is no presumption in this State of negligence against railroad companies upon simple proof of injuries or death caused by their trains." Upton v. R. R.,
The counsel of the plaintiff in his argument here on the petition to rehear insisted that this Court in its former opinion (
Petition dismissed.
DOUGLAS, J., dissents.
Cited: Plemmons v. R. R.,